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Civil Rights and Discrimination | Constitutional Law | Education Law | Religion Law

Abstract

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories put forward by scholars and judges who believe in a broad right of religious reproduction, trumping the state's interest in social reproduction, as well as those who believe that the interest in social reproduction should trump contrary claims by insular religious groups. The Article suggests that each of the major competing theories is fundamentally flawed and offers an alternative analysis based on communitarian and democratic values.

This democratic-communitarian view begins with the communitarian intuition that social subjects are constituted by multiple sources of value and that a rich diversity of value sources is important and worth fostering. Communitarian theory both recognizes the danger in allowing high-level value sources (that is, those value sources further from the individual) to become too thick and seeks to match social institutions to the values they are best able to promote. The role of education in our society suggests that it is uniquely well-situated to inculcate society-wide values. This conclusion combines with the democratic intuition that, in a democracy, decisions about the inculcation of social values can only legitimately be made by democratic means. The conclusion is that parents and courts are unjustified in interfering with social reproduction through schooling. However, communitarian theory also suggests that conscientious citizens and legislators should impose the minimum of constraints necessary to ensure the transmission of important communal values. That is, they should strongly consider democratically enacting the sorts of exemptions at issue in Yoder.